A thoughtful compilation and analysis of some important, but underreported and under-researched news stories, with particular focus on keeping the People informed about all Enemies, Foreign and Domestic.

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Monday, December 26, 2005

United States Government Searches Muslim-owned Property for Nuclear Material Sans Warrant; Legal?

I am torn. On the one hand, I am opposed to government searches without a warrant. But my opposition comes mainly from the fact that the government has a nasty habit of making behaviors that do not harm others into crimes. In this case, the government is searching for an inherently hazardous material. Locating and controlling inherently hazardous materials or conditions is a fundamental function of government and the process of doing such is a legitimate exercise of the state's police power. That's what the government was doing here... looking for radioactive materials that could pose a danger to the public. I don't see a legal problem. Now, if the government were to use evidence discovered in such searches to arrest people for unrelated activity, then I would have a problem with it... especially if they were arrested for behavior that was not inherently hazardous. So long as the government only uses warrantless searches of this sort to locate materials or conditions that are on their face inherently hazardous, I do not think there is a problem. The Bill of Rights exists to protect us, not to facilitate other people in their efforts to harm us or to destroy the country, and the Constitution itself. That's just common sense (but if it was really common, you'd think more people would have it). That being said, this is a slippery slope and this sort of activity should be subject to strict scrutiny and should, again, only be allowed where the government is searching for a material or condition that is inherently hazardous on its face.

Many have gotten the cart before the horse here. I'm not sure there's a "search" at all, let alone a "warrantless search" and it seems clear there is no "illegal" or "unconstitutional" search. The Supreme Court case cited in the USNWR article concerns thermal imaging devices used to "look inside" a home, like x-ray vision. Here, radiation measurements were taken from publicly accessible locations. No expectation of privacy, no unconstitutional search. It is the difference between listening in on a phone conversation by tapping the line, and listening in on a radio broadcast by turning on a receiver. What the public can see, smell, hear, etc. is not protected by the Constitution from government discovery. There is no reasonable expectation of privacy in radioactive emissions released into the atmosphere.

"If you love wealth more than liberty,
the tranquility of servitude better than the animating contest of freedom,
depart from us in peace. We ask not your counsel nor your arms.
Crouch down and lick the hand that feeds you. May your chains rest
lightly upon you and may posterity forget that you were our countrymen."